Hicks v. Commonwealth

548 S.E.2d Kevin Lamont HICKS Virginia. COMMONWEALTH Record No. 1895-99-2. Appeals Virginia, Court of

Richmond. July Benjamin DesPortes; Steven D. (Betty Layne Benjamin & DesPortes, P.C., briefs), Richmond, on for appellant. Theisen, (Mark B.

Virginia Assistant Attorney General L. General, Earley, Attorney brief), for appellee.

Amicus Curiae: American Virginia Civil Liberties Union of (Rebecca Foundation, brief), Inc. K. Glenberg, on for appel- lant. FITZPATRICK, C.J., BENTON, WILLIS,

Present: and ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, AGEE, and CLEMENTS JJ.

FITZPATRICK, Judge. Chief On October a panel of this Court affirmed the trespass conviction of Kevin Lamont Hicks (appellant). See Commonwealth, 561, Hicks v. 33 Va.App. 535 S.E.2d 678 (2000). Appellant’s petition for rehearing grant- en banc was ed and the mandate of the October opinion was stayed. Commonwealth, See Hicks Va.App. S.E.2d 616 Appellant contends the trial court erred in (1) denying his motion to prosecution dismiss the on grounds the barment-trespass procedure violated his (2) First and Fourteenth rights Amendment and denying his motion to remand the general case to the district court trial before a different of that judge require court and re- attorney prosecute Upon

Commonwealth’s case. banc, en hearing barment-trespass procedure we hold that the instant case violates employed by City of Richmond the First and Fourteenth Amendments United States and, thus, the trial court’s Constitution we reverse dismiss The mandate of the appellant. conviction of October hereby vacated. opinion

I. is a owned the Rich- housing project Whitcomb Court ,mond (RRHA). Redevelopment Housing Authority sought surrounding RRHA the streets “privatize” adjacent housing project to the Whitcomb Court an effort to community City make the safer.1 On June 1997 the deeding Richmond ordinance No. 97-181-197 adopted to RRHA. The ordinance surrounding Whitcomb Court provided: Street, Street, Street,

§ 1. That Carmine Bethel Ambrose Street, Deforrest the 2100-2300 Block of Street and Sussex Magnolia the 2700-2800 Block of Street Whitcomb Court ... and are closed to use and travel and hereby City abandoned as streets of the of Richmond. utility

§ 3. The shall retain a full width easement proposed the streets to be closed this ordinance---- goals explaining of street 1. RRHA issued brochure to the residents privatization: by removing persons unlaw- To make communities safer who commit enjoyment destroy peaceful acts of other residents ful which places play drug paraphernalia of To ensure that children have free activity. danger gunshots other criminal and the and develop safety provide opportunity for residents to initiatives in To an security community, patrols, social number their such as resident identification, watch, neighborhood etc. property knowingly persons engage in who harbor who To hold households activity criminal accountable. § 4. The City right shall retain a full width of way mainte- nance easement in proposed by the streets to be closed this ordinance.

§ 5. That the aforesaid streets shall designated public highways for purposes____ law enforcement The streets deeded to Whitcomb issue here were those surrounding adjacent to the property owned RRHA, by not those contained within Prior Whitcomb Court. “privatization,” these streets were similar to all other streets in Richmond. After the streets were deeded to RRHA, red and “private property, white trespass” signs no posted throughout were Whitcomb Court every “hundred block,” feet on each informing that “these streets privatized and all is privatized, no trespass.” The signs were “approximately 18 inches to almost inches However, about 12 inches.” the streets gated, were not barricaded, or otherwise closed or restricted only to Whitcomb Court traffic. The traffic, streets remained open to vehicular and the sidewalks open were public. access

After the RRHA, streets were deeded to RRHA adopted a barment-trespass procedure to prevent any “unauthorized persons” from entering property. On November the RRHA’s Director of Housing Operations authorized

each and every sworn officer the Richmond Police De- partment to trespass enforce the laws the Commonwealth ... Virginia [upon RRHA property known Whitcomb as] Court.... every [E]ach Richmond Police Department notice, officer [is to serve orally authorized] either or in writing, to any person on RRHA property] [found when person resident, such is not a employee, or such person cannot demonstrate a legitimate business or social purpose being premises. According to a printed brochure issued by RRHA to the residents, Whitcomb Court “unauthorized persons,” who are subject to the barment proceedings, are all non-residents who cannot demonstrate are on the premises “visiting resident, conducting development or on the lawfully residing legitimate business.” per- officer makes the determination whether police

The barred, a.tenant person whether the son is to be determines tenant, there is a at the invitation of a or whether or is there simply the A being property. person reason for on legitimate RRHA category people fit whom has to fail to within on the streets and sidewalks has deemed entitled to be to adjacent housing development be barred. barred, is a without person trespasser who returns Once occasion, whether, he or she is regard subsequent to on at the invitation of a legitimate there on business or Whitcomb Court tenant. property on the trespassing

Hicks was convicted 26, 1998, February Court on 1998 and June Whitcomb on Court respectively, damaging property and of Whitcomb Rogers, Mrs. April April 1998.2 On Gloria Court,- a written notice manager at served housing Whitcomb him that he was banned from Whitcomb advising on Hicks proper- on RRHA trespass He was “not to property. premises, if or on the ty,” caught [he would] he was “seen mother, baby, Hicks’ his subject police.” to arrest After receiv- baby’s and his mother live at Whitcomb Court. notice, returned to Whitcomb Court ing the Hicks twice to seek to come back speak Rogers permission with Mrs. January requests His were denied. On property. (Laino) walking Hicks Laino observed Officer James Street, of Bethel one westbound the 2800 block Court. Laino knew adjacent to Whitcomb “privatized” explained Hicks property. that Hicks was barred from the to his “bringing pampers Laino that he was on the conversation, out and a female came baby.” During the visiting Hicks. Hicks indicated he was Laino and approached trespassing. Laino issued Hicks a summons her. is not related to his Appellant's Whitcomb Court barment from damaging property Court. at Whitcomb court general Hicks was tried district without attorney. of a The district court presence Commonwealth’s questioning objected conducted the of Hicks. Hicks judge testimony this struck Hicks’ end procedure. judge of the trial and convicted an appeal him. noted court. circuit court,

Prior to trial the circuit Hicks filed a motion requesting a remand to the court new general district for a trial and an to requiring order a Commonwealth’s be attorney present represent and to the new Commonwealth this general district court trial. The court circuit denied the on authority motion the that it lacked ground remand the charge trial. Hicks also moved to the of dismiss on trespass the that the ground trespass RRHA’s violated policy the First and Fourteenth Amendments United States Constitu- tion. The circuit court denied his motion to dismiss and found guilty trespass. of

II. CONSTITUTIONALITY OF

RICHMOND ORDINANCE Appellant argues City that Richmond No. Ordinance 97-181-197 and the RRHA procedure vio barment-trespass late the First and Fourteenth of Amendments the United Thus, States Constitution.3 must we determine whether the First and Fourteenth Amendments are tres violated pass statute as enforced under authority granted by RRHA Richmond City police to bar on people officers the streets argues appellant contesting The Commonwealth is barred from validity procedure barment-trespass of the because he not did present presence challenge a defense to his on RRHA or his original barment-trespass prior procedure barment notice or the itself being charged trespass January with 1999. Therefore argues improperly collaterally attacking Commonwealth he is his disagree. charge, trespass conviction. We to his trial this Prior appellant challenged barment-trespass procedure as unconstitution- trial, appellant’s trespass charge At al. defense to was that and, thus, barment-trespass procedure rights his violated constitutional guilty trespass right he not a could be because he had constitutional Thus, walking timely appellant to be we on Bethel Street. End that validity barment-trespass procedure. raised issue of not who do surrounding adjacent Whitcomb critical narrowly people. fit a defined The group within are “privatized” issue is sidewalks whether forum,” a or whether public and as such are “traditional public and, “nonpublic they forum.” If “private” thereby, forum,” pro- barment-trespass are “traditional then that the satisfy scrutiny requirement cedure must the strict narrowly tailored to serve state procedure compelling (11th Tampa, interest. See Daniel F.3d 546 Cir.1994).

A. “PUBLIC FORUM” constitutionality regulation The of First government analysis. rights analyzed Amendment under fora (4th County, See Warren v. F.3d Cir. Fairfax 1999). that the analysis recognize forum was created to able to the use of to

government property must be limit its for created purpose property the intended which the was and to rightfully conducting limit access those business end, that has identified at least there. Toward the Court types three fora for Amendment each purposes, of First regime scrutiny: the subject a different of constitutional forum, forum, designated public traditional and public nonpublic distinguishes forum. The Court between upon physical these fora characteristics based location, objective pur- its and property, including use intent with poses government policy of and and its may which be evidenced respect property, historic and traditional treatment. omitted). (internal

Id. at 190-91 and citations Public streets a archetype to as the of repeatedly sidewalks are referred “are those areas public among traditional forum because traditionally open have been held public property of those clearly activities and are within public expressive for considered, generally public property may of be areas United property.” to be forum inquiry, public further without

57 1708, Grace, 171, 179, 1702, 75 States v. 461 U.S. 103 S.Ct. (1983). L.Ed.2d 736 may rest, they parks the title of streets and have

Wherever immemorially held in trust for the use of the been mind, and, time out been for of purposes of have used citizens, and assembly, communicating thoughts between of and discussing public questions. Such use the streets has, times, public places part from ancient been immunities, privileges, and rights, liberties citizens. privilege of a citizen of the to use United States the streets parks for communication of on national questions views all; absolute, it may regulated be the interest of is not relative, but must be exercised in subordination to the convenience, comfort and general and in consonance with not, order; it peace good must guise but regulation, abridged or denied.

Hague Committee Organization, Industrial 307 U.S. 496, 515-16, 954, 964, 83 L.Ed. 1423 “Ownership streets and does not mean always [of sidewalks] Alabama, absolute dominion.” Marsh v. 276, (1946)

S.Ct. L.Ed. (holding that privately owned streets and sidewalks in owned which company town operated are built and primarily to benefit the protected by traditional forums that are First Amend guarantees). Grace, ment constitutional In U.S. 75 L.Ed.2d the United States Court Supreme ability addressed the government certain redefine public sidewalks in front of Supreme the United States Building as forum. non-public separation, There was no fence or other entering indication to persons sidewalks that served as the the perimeter grounds they of Court a non-public entered forum. “The sidewalks the comprising outer grounds boundaries of the Court are indistinguishable D.C., from other any Washington sidewalks and ... [there they no why any is] reason should treated Id. differently.” 179, 103 at S.Ct. at The held that:

“Congress[, no more than a not township,] may suburban ipse ‘public its own destroy dixit the forum’ status of streets ” historically forums.... parks public which have been scope the inclusion of sidewalks within public the however, results in the destruction of prohibition, § 13k’s impermis- presumptively forum that is at least public status special a property occupies Traditional forum public sible. and will protection of First Amendment position terms for the reason historically recognized not lose its character that has been dedicated government property that it abuts Nor public expression. other than as a forum for use proper- the of the government the transform character may it including statutory ty by expedient within forum non-public of what be considered a might definition parcel property. Service v. (quoting 103 S.Ct. at 1702 U.S. Postal

Id. Assn’s, Greenburgh Civic (1981)) to reflect (quotation 69 L.Ed.2d 517 altered wording).

original Grace, Whitcomb Court surrounding As the streets manner from separated to RRHA not deeded were in the area. The sole indication to other streets sidewalks are “private” entered street “red public they have almost 24 signs ... inches to approximately and white ... hundred feet spaced every inches about inches about building that “these indicating on block” and on each each privatized,, are and all the no privatized streets until after There indication to trespass.” is no are any that the streets “privatized” enter onto streets and are city from the of the streets in the now different rest “pri are “privatized” streets private property. Some ends of and are on both only couple vate” for of blocks Thus, although signs the street de blocks. “privatized” use of resi and for the exclusive “private” clare the streets business, legitimate and those there persons dents to serve the same functions and and sidewalks continue as before equally accessible “privatizing” streets. passed Richmond the ordinance

59 a street she is person “privatized” has entered a he or Once A subject procedure. trespasser who barment-trespass a or “not receives is informed he she is to warning upon property” RRHA or Court.” How- trespass “Whitcomb ever, the not inform the that the streets warning person does RRHA surrounding complex part and sidewalks property. from appear

Because the streets no different other streets they Richmond and function prior serve same did can no “privatization,” why they “we discern reason should any differently” treated from other or street sidewalk. Grace, 179, 461 City U.S. at 103 S.Ct. at 1708. The permitted Richmond is not to transform the streets and sidewalks Whitcomb Court into private, non-public property closed, simply passing declaring an ordinance them convey- RRHA, ing governmental them another entity, and Marsh, 501, placing signs along the streets. See 326 U.S. 66 276, 265; Grace, 171, 90 L.Ed. Thus, 75 L.Ed.2d 736. the streets and sidewalks surrounding Whitcomb Court not did lose their forum when status of Richmond deeded them to the RRHA put signs some indicating the street were now private Hence, property. barment-trespass procedure must satis- fy rigors of strict scrutiny pass constitutional muster.

The argues Commonwealth that our prior decisions in Col- Commonwealth, lins v. Va.App. (1999), 30 517 S.E.2d 277 Commonwealth, Holland 28 Va.App. 502 145 S.E.2d (1998), housing allow authorities to restrict access their designate police officers to serve barment no- tices and persons trespassing arrest on housing authority property. We previously approved process have which police officers may be designated agents housing authority to serve barment notices on persons trespassing on Collins, housing authority property, see at Va.App. 280; Holland, 70-76, at Va.App. S.E.2d at S.E.2d However, 146-49. what case distinguishes this from those is that Hicks guilty was found trespass having gone upon adjacent sidewalk, Bethel Street and the whereas in both Collins, non-public were on the Holland and defendants buildings housing authority. and in the grounds The also contends that we should follow Commonwealth Daniel, Circuit’s decision in 38 F.3d 546. Eleventh to a no authority a enforce housing Daniel court authorized to at issue in identical the one the instant trespassing policy case, Daniel, However, City- unlike the “the case. instant surrounding intersecting and sidewalks and owned streets Authority the to the Housing open [were] with City-owned and had access to public” Daniel “unlimited the Id. adjacent housing complex.” and to the streets sidewalks Auth., 550; Hous. Georgetown at 548 n. 3 & see also Walker v. (1997) (calling N.E.2d 1128 into Mass. the of the court and question reasoning applicabili Daniel the “open the and that were ty ruling kept to streets sidewalks Thus, Daniel, was public”). trespassing policy to the the no consisting housing of the non-public limited forum authority’s buildings grounds and and did not include sidewalks the RRHA does adjacent policy streets and as street public instant case. Bethel Street is a that was built access public provide and maintained with funds all to that of Richmond. As with streets public part public thoroughfares, historically traditionally streets public and and exchange served a locale for free and dissemina have as can tion of and have served as an area where citizens ideas exchange freely lawfully congregate and or move about and discourse.

The fact title to streets is transferred from legal government government agency to a which owns municipal change operates development does not public housing of the streets and sidewalks public nature and character See part City. to this of the provide which access Marsh, City The L.E,d. U.S. surrounding cannot transform the streets Whitcomb closed by declaring into them non-public entity conveying governmental them to another ordinance and the same purpose when continue to serve before.

B. “STRICT SCRUTINY” Therefore, the City of Richmond’s and RRHA’s at control tempt to access and movement the streets and upon city “subject scrutiny; sidewalks to strict must be [it] narrowly tailored to serve state interest” of compelling [the] safe providing housing development’s residents. Dan iel, goal 38 F.3d at 549. The RRHA stated barment trespass procedure is to a safe free ensure environment from activity criminal for the residents of Whitcomb Court. We agree that the compelling Richmond has a interest protecting its and preventing activity. citizens criminal Howev er, not, may crime, it in its endeavor to control pass regulation enforce so scope broad in that it unduly restricts or criminalizes innocent constitutionally behavior. protected procedure in this barment-trespass used case inhibits a “ person’s constitutionally protected ‘right to remove from one ” place to another according to inclination’ person’s right public to “remain in a place of his choice.” Chicago v. Morales, 41, 53, 54, 527 U.S. S.Ct. 144 L.Ed.2d (1999) Fears, 270, 274, (quoting Williams v. (1900)). Morales, 45 L.Ed. 186 In the United Supreme States a city Court held that designed ordinance reduce crime by criminalizing “loitering” violates the Constitu- tion. The stated that “it is that an apparent individual’s public decision to remain in a of place his choice is as much a part of his the of liberty as freedom movement inside frontiers part our ‘a of or heritage’ right to move ‘to ” place whatsoever one’s may own inclination direct’ and the “broadly significant ordinance covers a activity amount” of constitutionally 53-54, that is protected. Id. at 119 S.Ct. at (internal ommitted). City citations and Richmond RRHA barment-trespass procedure prevents person also a from standing upon surrounding streets Whitcomb Court “legitimate Thus, without a implicates reason.” it the same concerns addressed Morales.

The barment-trespass procedure is not limited as to so encompass only persons those City whose conduct the seeking is so broad procedure

RRHA were to curtail. The upon drive or one of the merely citizens who walk group fall the defined not “privatized” people streets within upon to be the streets procedure authorized barment and, thus, may guilty be of criminal and sidewalks deemed crime, A citizen not commit a intend to commit conduct. need infringe privacy a of the residents upon crime or barment-trespass in violation of the Whitcomb Court no presented statute The Commonwealth and ordinance. than exercise his appellant anything evidence that did other . constitutionally protected right upon to walk Bethel Perhaps, sidewalks of the of Richmond. had City barricaded, or gated, physically Street been restricted travel, gated traffic not free to as with public where was communities, non-public and the street could be considered a can more public not “traditional forum.” But the no open Court and leave them “close” the streets Whitcomb public, thereby “non-public to make them purporting forum,” than it could declare “closed” all streets Richmond’s areas, denying neighborhoods thereby and residential troubled and their invitees except access to all citizens residents streets, such specifically approved. Neighborhood and others Court, streets, paid for and public those Whitcomb funds, for public maintained with the use benefit public. use entity can

While restrict buildings using property or to those who are building, an office it “non-public” purpose, its such as intended that is considered “traditional public property cannot restrict sidewalk, forum,” being or that is used such as a street constitutionally that is way purpose in a and for a lawful lawful Kokinda, United States 497 U.S. protected. See (1990) (holding 111 L.Ed.2d 571 solely to provide of a office “constructed post sidewalk in front business” is engaged postal for of individuals passage forum). RRHA, effect, Here, City non-public private property, sidewalks to the streets and converting rights private confer RRHA same attempted upon may everyone coming who restrict from upon owner private property property except owner’s the owner’s invitees, regardless tenants and the tenants’ of whether the However, anything invitees had done unlawful. the United Court has that even a Supreme private entity States held deny which owns the entire town cannot close the streets to Marsh, their constitutional See rights. Therefore, at 276. the barment-trespass proce- narrowly dure at issue here is not tailored to encompass only those activities the RRHA from sought prop- exclude their erty.

III. CONCLUSION Thus, we hold that Richmond’s barment-trespass procedure, scrutinized, when strictly narrowly is not tailored to serve the interest, government’s compelling the standard that must be government met when the attempts regulate activity in a “traditional forum.”4 The RRHA’s privatization effort unconstitutionally infringes upon a citizen’s First Four- rights lawfully teenth Amendment present place. Accordingly, we hold that city ordinance No. 91-181- through as enforced the barment-trespass procedure is unconstitutional and-we reverse and appellant’s dismiss con- viction.5

Reversed and dismissed part, reversed and remanded in part. petition appeal, appellant requested In his for also this Court to set revoking suspended aside the prior order his sentences on his two trespassing prior for convictions at Whitcomb Court and his conviction However, damaging property appellant at Whitcomb Court. did not Therefore, pursue argument. this on brief or in oral we remand this suspended case to the circuit court to reconsider the revocation of his light holding opinion. sentences in of our in this

5. Because we reverse on the failure of of Richmond to establish constitutionality barment-trespass procedure, we do not appellant’s arguments regarding general address errors in the district proceedings barment-trespass procedure court or whether the violated procedural process requirements due of the Fourteenth Amend- ment. HUMPHREYS, WILLIS, BRAY, Judge, with whom AGEE, JJ., join, dissenting. BUMGARDNER and I. Constitutional Issues I respectfully majority opinion, must dissent from which Author- Redevelopment Housing holds the Richmond and (RRHA) ity’s barment and violate proceeding trespass policy and Fourteenth First Amendments the United States Constitution.

First, I agree properly objec- do not that Hicks raised his tions to RRHA’s procedures. barment Hicks concedes RRHA him provided April with a barment notice on This notice issued to Hicks to a pursuant 1998. barment was Richmond, valid ordinance adopted requir- both ing authorizing any necessary and RRHA to take to steps that the ... “give appearance longer closed streets are no streets and that are in fact private streets.” The notice, which Hicks of its signed acknowledgment receipt, specifically Hicks from onto RRHA prohibited entering prem- ises for reason. occasion, on at least one Hicks

Subsequently, approached housing manager property, for the Whitcomb Court Gloria (cid:127) mother, that he his Rogers, request be able visit property. Rogers request resident of that denied his and again entering informed him that he was barred from However, other than property pursuant to the barment notice. Rogers, steps appeal Hicks took no his barment speaking or the courts. In- through Authority official channels of the stead, he the barment and was arrested and convicted ignored trespassing, damaging property as well as for Whitcomb Court, January to his arrest for the incident of 1999. prior addition, conviction, In Hicks received a prior trespass for this the court-ordered condition that he suspended sentence on years. and be of behavior for three keep peace good notice, However, ignore Hicks continued to the barment order, January trespassed again well as the court time, Now, with his convic- for the first connection argues that the January trespass, tion for the rights his constitutional under the First barment violated Fourteenth Amendments. untimely an arguments regard represent

Hicks’ this status. have improper collateral attack on his barment We held, adjudication, in context of an offender that habitual order, knowledge underlying where a defendant has of an order, order, appeals subsequently never and violates the proceeding. he cannot attack the order in the new underlying Commonwealth, 645, v. Morgan Va.App. See 28 507 S.E.2d (1998). 665 based our in Morgan Mays We decision (4th Harris, Cir.1975), 523 F.2d 1258 wherein the Fourth Appeals Circuit Court of held that an habitual offender who conviction, not, failed to appeal underlying could with adjudication choose to and impunity, ignore resulting injunction “for, ... ‘in justice, the fair administration of no judge man can be in his own at (quoting case.’” Id. 307, 321, 1824, 1832, Walker v. Birmingham, 388 U.S. (1967) 18 L.Ed.2d 1210 (holding party that a can be held of court for contempt violating injunction, an even if the Constitution)). injunction was invalid under the Federal Walker, I believe the principle Mays advanced and Morgan Here, is equally applicable to this case. Hicks was barred property pursuant from the to authority granted by which, turn, RRHA ordinance an provided administra- procedure tive for contesting such barment. Hicks had knowl- edge his barment from the he property, previously had been trespassing convicted of on the property prior to his trial for the trespassing January conjunc- incident of conviction, tion with that he had been ordered the court to good years. maintain behavior for three Despite opportu- nity presented by the court prior proceedings, as well as the availability of an appellate procedure, administrative objection raised no to the propriety of the barment until his 20, January trial for the 1999 incident. Pursuant cases, set forth in the I principles above-cited do not believe Hicks should be allowed to have bypassed “orderly judicial review of barment and his prior trespassing [the convictions] Walker, disobeying

before [them].” at 1824. reject

I would also challenges constitutionality Hicks’ “In policy. assessing constitutionality of RRHA’s of a ordinance, statute or presume legislative courts must action is valid. the burden is on the Consequently, challenger to demonstrate the constitutional defect.” Coleman v. City of Richmond, Va.App. 364 S.E.2d I would hold that Hicks failed to meet this burden.

Hicks essentially argues, orally, on brief and that because the streets of once public Whitcomb Court were streets and Richmond, sidewalks owned re- statute his thereon is stricting presence unconstitutionally overbroad vague. or Hicks further alleges policy because the it his vague, impinges upon overbroad First Amendment of free guarantees speech implied guarantee of free association, as well as his Fourteenth process Amendment due protections.

“[G]enerally, may litigant challenge constitutionality 463, only applies a law as it to him or her.” Id. at 364 S.E.2d person at 241. “The traditional rule is that a to whom a [policy] may constitutionally may challenge be not that applied on the that it [policy] ground may conceivably applied be unconstitutionally to others situations not before the Ferber, 747, 769, Court.” New York v. 458 U.S. 102 S.Ct. (1982). 3348, 3360, Yet, 73 L.Ed.2d 1113 has come to known as the Amendment be First [w]hat exceptions overbreadth doctrine -is one of the few to this principle justified by weighty countervailing and must be on the sensitive nature policies. predicated The doctrine is ... protected expression is for this reason [and][i]t persons overly we have allowed to attack broad statutes though person making even the conduct of the the attack is proscribed by and could be a law drawn clearly unprotected requisite specificity. with the has also allowed a facial Supreme Id. The United States vagueness though litigant’s attack on the even grounds Lawson, was See Kolender v. speech unprotected. own (1983). 352, 103 1855, 75 L.Ed.2d 903 U.S. S.Ct. Nevertheless, merely speech “where conduct and not is involved, only ... of a statute must not overbreadth real, well, in relation to the judged [policy’s] but substantial as Ferber, 770, 102 plainly legitimate sweep.” 458 U.S. at majority. This distinction is “We ignored its face [policy] have never held should be invalid on merely possible single impermis- because it is to conceive of a Instead, sible Id. at 102 S.Ct. at 3348. application____” a facial of a challenge vagueness “[i]n overbreadth law, a court’s first task is to determine whether the enactment constitutionally reaches a substantial amount of protected Hill, 451, 458, conduct.” Houston (1987). 2508, 96 L.Ed.2d 398

A will be policy unconstitutionally deemed overbroad if it is “one that designed punish to burden or activities which are constitutionally protected, not [policy] but the includes within scope its activities which protected by the First Amend Commonwealth, 681, 690, ment.” Parker v. 24 Va.App. S.E.2d 154-55 A policy will be deemed unconsti if “it tutionally vague does not define the criminal offense with ordinary sufficient definiteness that can people understand prohibited what conduct is and in a manner that does not encourage arbitrary discriminatory enforcement.” San Commonwealth, tillo v. 30 Va.App. 517 S.E.2d (1999) (citation omitted). determination, It is axiomatic that such a making an court appellate speculation should refrain from outside Here, record before it. contrary argument, to Hicks’ clearly not policy freely associating does bar individuals from with their living friends or loved ones on RRHA nor property, does it prohibit persons exercising expression. from free Fur- ther, the policy automatically every does not delineate non- resident who uses a sidewalk owned RRHA to abe Instead, as trespasser, suggested by majority. merely it RRHA, police, agents authorizes the Richmond 68 persons property

ban from the who enter upon property without from a resident or the RRHA. permission Significant- ly, any unauthorized individuals are not arrest- automatically ed, they but are warned that are not to enter the Further, in the future.6 property those who have been for- mally banned from the are property not without recourse and channels, can request, through proper RRHA to have the ban removed.

Thus, I policy “paradigmatic would consider this as a case of legitimate arguably impermissi- whose reach dwarfs its [one] Ferber, applications.” ble 458 U.S. at 102 at 3348. S.Ct. circumstances, Under these I policy would find that the is not “substantially overbroad” vague and “whatever and/or overbreadth vagueness] may through [or exist should be cured case-by-case analysis fact situations to which its sanctions, assertedly, may not be Broadrick v. applied.” Oklahoma, 601, 615-16, 2908, 2918, L.Ed.2d 830 majority has found that the property Whitcomb Court

is a traditional forum simply property because the question adjoining is a sidewalk a street constructed and once However, owned of Richmond. neither the evi precedents dence this record nor the of the United States Supreme compel finding. such a I agree “[t]he Supreme adopted analysis Court has a forum as a means of determining when the Government’s interest limiting use of its property purpose outweighs its intended interest of those wishing pur use the for other poses. Accordingly, the extent to which the Government can depends control access on the nature of the relevant forum.” Kaltenbach, (3rd Cir.2000) 204 F.3d (citing Paff Fund, Legal Cornelius v. NAACP & Educational Defense Inc., 3439, 3448, U.S. 87 L.Ed.2d otherwise, Contrary majority’s presented statement no suggesting warning persons evidence that the does not inform that the complex part surrounding streets and sidewalks of RRHA property.

69 (1985)). However, is public property the relevant “[w]hen forum,’ rather than an ‘non-public ‘open determined to be a forum,’ ‘designated government greater forum’ or a has speech.” freedom to restrict Id. physi-

A has the public property traditional forum which has the public thoroughfare, cal characteristics of a which or some other objective purpose open public use and access objective expres- purpose inherently compatible use and with conduct, by and which and tradition has been used history sive conduct. v. 169 expressive County, See Warren Fairfax Cir.1999) (4th 190, J., (Murnaghan, dissenting), F.3d 198 adopted incorporated by majority reference (4th Cir.1999) v. County, Warren 196 F.3d 191 Fairfax (en banc). out, the majority correctly points As also a side- adjoining walk street will fall into public generally this Schultz, 474, 481, category. Frisby See v. 487 U.S. 108 S.Ct. (1988). However, 2500-01 the sidewalk at issue here is not the “quintessential” public sidewalk which has been “im- memorially held in trust for the use of the public,” or which debate, traditionally has been “used for public assembly and the hallmarks of a traditional public Frisby, forum.” See 487 480-81, 2500; U.S. at 108 at S.Ct. see also United States v. Grace, 171, 179-80, 1702, 1709, 461 U.S. 103 S.Ct. 75 L.Ed.2d (1983) 736 that it (instructing every is incorrect to assert that forum). “public sidewalk” is a it is true that While of Richmond cannot transform private, non-public property sidewalks into an simply passing declaring private ordinance them or closed this is one factor to property, but consider determin- ing the nature of the sidewalks issue. See Marsh Alabama, (1946); 66 S.Ct. 90 L.Ed. 265 see Kokinda, 720, 727, also States v. United U.S. Moreover, contrary L.Ed.2d 571 conclusion, majority’s mere physical “[t]he characteristics Kokinda, analysis.” cannot dictate forum 727,110 Instead, U.S. at S.Ct. at 3115. we must also consider sidewalk, purpose the location and in order to determine 728-29, its private. character as or See id. at at 3115.

I agree with the majority a “critical issue” is also privatized whether the streets continue in previous their char- However, acter public as traditional forum. contrary to the I majority, treatment, would find that neither the purpose, the physical nor the characteristics of the Whitcomb Court side- walks support majority’s they conclusion that fall within the parameters of a traditional forum. public

First, property, the Whitcomb Court including its streets sidewalks, has been deeded from the to the RRHA. ignored Although by majority, a condition for the closure of the streets by City required RRHA to “make provisions give streets, that appearance the closed particularly at entrances, longer public no streets and that they [were] fact, private streets.” In order to require- [were] meet this ment, although the streets and sidewalks of the development barricaded, were not physically RRHA posted red and white signs, “approximately 18 inches to almost inches about size, inches” on each side of the buildings, as well as on block, the streets of the on each property, every about feet. signs clearly These indicated that the street and side- privatized walks had been and that trespassing prohibit- was ed.7 The record further indicates that RRHA held meetings provided with residents and pamphlets explaining privati- zation. pamphlet encouraged explain residents to privatization to their neighbors guests order to facili- change. Finally, tate the for at a year prior least to Hicks’ arrest, present RRHA and the police Richmond treated the property private property by determining whether visitors were authorized and banning persons unauthorized from the property. size, signs

7. Officer Llaino testified to the number and location of the message signs and that the substance of the on the was that "all the privatized trespass[ing prohibited.” had been was] and that This evidence was uncontradicted. to the is no indication concluding “[t]here In [they] streets ‘privatized’ enter onto until after city,” the streets the rest of different from function out- fact-finding assumes majority improperly both shifts the burden and improperly in this case side the record from away forum character of the concerning the proof “privatized” character of the A review of the Hicks. court, trial sidewalks, record of the restricted to the buses, delivery for school exceptions other than reveals that enforcement, there is trucks, and law city service vehicles sidewalks that the streets absolutely no evidence and/or open to a flow property remained Whitcomb Court Furthermore, though even traffic, majority suggests. as the fact alone does “may open public, [that] sidewalks traditional must be treated as that such areas not establish Kokinda, Amendment.” fora under the First 729,110 at 3115. Thus, of Richmond the clear intent given category from the streets of remove the Whitcomb general public for use thoroughfares available large at to the residents and the given the notice that the streets and signage and obvious repeated form of character, I would hold longer “public” were no sidewalks analyzed by RRHA must be imposed the restrictions they must be reason- non-public property: under the test for merely expression because suppress and “not an effort to able view.” Id. oppose speaker’s officials Local Perry Education Assn. (citing Perry S.Ct. at 3115 Assn., 948, 955, Educators’ U.S. (1983)). L.Ed.2d purpose the stated dispute is no here

There effort, “pro- which was to enforcement trespassing RRHA’s in a often used place for citizens vide a safe environment fact, In have legitimate. we drugs,” is reasonable sell authority by delegation upheld previously unauthorized individ- officers to bar housing complex police crime, purpose preventing for the property uals from the protecting property and preserving the peace. See Holland v. Commonwealth, 28 Va.App. 502 S.E.2d 145

Moreover, above, as stated the record is clear person that a is not considered “unauthorized” until he or she has entered property permission without the of either a resident or an then, RRHA official. Even and notwithstanding numerous signs obvious that acquaint anyone able to read that the character of the property private and not public, unless the individual is engaged some type of criminal activity, that individual is not formally barred from the until after he or she has been warned not to enter the property without permission. Once an individual is barred from property, procedure is available to request removal of the barment. Further, produced no evidence that either RRHA or the police Richmond have ever banned form of expression based on its content. record,

Based on this I would find that any potential inter- ference with an right individual’s of expression intimate and/or association -with Court, residents of Whitcomb or to “loiter” on which, the property, owned, although publicly in my judgment constitutes a “non-public forum” for First Amendment pur- reasonable, poses, is justified limited and legiti- achieve the mate purpose of protecting these residents from crime. Therefore, I would hold that Hicks’ conduct at the time of his namely, knowingly trespassing private property— arrest — was not constitutionally protected.

II. Motion to Remand Because I would hold that RRHA’s barment "proceeding and trespass policy with respect to Hicks do not violate the First Amendments, and Fourteenth I would address remaining the assignment of error. argues that he was entitled to have his case remanded general district court for a new trial before another

judge because the judge of that court presided who over the initial trial improperly assumed prosecutor the role of a “cross-examining” him. there is held that long has Virginia Supreme

The judge questions a asks a trial when damage to fair no inherent of a witness. on his of a witness either [may] questions ask judge trial

[A] practice on cross-examination. in chief or examination Indeed, there are permissible. perfectly is common and sit there and He is not to duty it his to do so. times when is to facts prove account of omissions justice see a failure witness, the character of a but knowledge plainly within his bias on not such as disclose his should questions “For truthfulness of the witness. to discredit the part, or which has not otherwise eliciting evidence purpose out, judge put proper it is brought been or his examination chief to a either on questions witness has cross-examination, anything material on his and where omitted, duty his to examine wit- it is sometimes been ness.” Commonwealth, 128 S.E. v. Va.

Mazer (1925) (citations omitted). court, addition, in the held that “the trial

In we have discretion, jurors to submit may permit its sound exercise of of a witness.” Williams to be asked questions written Commonwealth, 577, 582, 484 Va.App. S.E.2d function of “[t]he also noted We Williams all factual resolution of equitable is to assure a fair and jury facts, final serves as the arbiter jury issues. The evidence, credibility of judging the ‘charged weighing with Id. at witnesses, a verdict’ in the case.” reaching court no less to the belongs at 155. This function 484 S.E.2d not determine here as the fact finder. We need serving when demon- judge’s questions district court general whether the the court or because inappropriate prejudice strated an bias as his questions as well Hicks’ motion to strike granted answers. in a addition, defendant remedy provided

In of a trial court part error on perceives criminal case who tribunal. higher the matter to right appeal to exercise the courts, the tried in the district In context of misdemeanors in General has established a to a trial Assembly right de novo the circuit court.8 A de novo means a trial On hearing anew. annulled, a appeal, conviction in the district court is new and a trial is held in circuit court. Ledbetter v. the See Common- wealth, 805, Va.App. S.E.2d 250 clearly preferable

While it would be and in its interest for the be represented Commonwealth to counsel in every case in which it is a the party, Assembly General has declined 15.2-1627(B) mandate representation. § such Code recites the duties of Attorneys Commonwealth’s and their assistants.9 This statute only requires Attorneys Commonwealth’s to pros- ecute provides “may felonies and that a in his prosecutor discretion, Thus, prosecute Class and 3 misdemeanors.” Assembly the General decided a of policy place as matter the discretion in representation for the of the Commonwealth in misdemeanor the the cases hands of executive branch judicial rather than the branch government. of Supreme relies on the decision of the Court of the Monroeville, United States in v. Village Ward of (1972), 34 L.Ed.2d 267 as authority for his argument de that a trial novo does not cure errors committed in a lower court. I find his reliance on In misplaced. Ward Ward, systemic the of Supreme problem addressed a inherent in local mayors’ bias the infrastructure of courts. There, mayors villages courts, of sat in a judges major village portion of income was derived from the collection finding of these In fines. such a scheme violates the due § provides pertinent part: "Any appeal Code 16.1-136 in taken under provisions chapter appellate de this shall be heard novo in the and, pleadings writing; court and shall be without in tried formal ... jury accused shall be entitled to trial in the same manner ifas he had been indicted for offense in the circuit court.” 15.2-1627(B) provides part: § pertinent attorney 9. Code "The powers imposed shall upon Commonwealth ... have the duties and law, warrants, by general including duty prosecuting him all charging felony, may indictments or and he informations his discretion, misdemeanors, prosecute Class 2 and 3 or other violation, penalty of which conviction carries a confinement more, jail, $500 or fine of or or both....” courts, mayors’ in the rights of criminal defendants process infirmity was constitutional Brennan noted Justice powers doctrine. separation grounded power mere union of the executive Although “the violate process in him cannot said to due judicial power one law,” situation is mayor’s test is whether the of man average temptation a possible “which would offer convict proof required of judge forget burden defendant, him not hold the might or which lead nice, and true the State and balance clear between “possible temptation” may also exist Plainly accused.” fi- village executive mayor’s responsibilities when partisan nances him to maintain level may high make mayor’s contribution from the court. (citations omitted). at 80

Id. find, systemic nor I such bias allege, does not do courts procedural structure district Common- Thus, assuming deciding wealth. without that the questions judge court propounded by general district constituted error, I in the would hold that the trial de novo circuit court provided remedy. an adequate reasons,

For all of I these dissent and would affirm the judgment trial court.

548 S.E.2d 262 MINOR, Minor Carlos Demetrius Carlus Demetrius s/k/a Virginia. COMMONWEALTH Record No. 1996-00-2. Appeals Virginia, Court of

Richmond. July

Case Details

Case Name: Hicks v. Commonwealth

Court Name: Court of Appeals of Virginia

Date Published: Jul 3, 2001

Citation: 548 S.E.2d 249

Docket Number: 1895992

Court Abbreviation: Va. Ct. App.