Jack Eugene TURNER v. COMMONWEALTH of Virginia
Record No. 2039-15-3
Court of Appeals of Virginia, Lexington.
NOVEMBER 22, 2016
792 S.E.2d 299
OPINION BY JUDGE ROBERT J. HUMPHREYS
with Disabilities Education Act on the basis that J.V.‘s parent purportedly refused to consent to the eligibility group‘s conclusion. The circuit court consequently erred in granting the School Board‘s plea in bar and failing to address on the merits the question of whether the School Board‘s proposed individualized education program provided J.V. with a fair and appropriate public education.
Therefore, we reverse the judgment of the circuit court and remand the case for further proceedings pursuant to
Reversed and remanded.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, AtLee and Senior Judge Clements
OPINION BY JUDGE ROBERT J. HUMPHREYS
Jack Eugene Turner (“Turner“) appeals the December 8, 2015 decision of the Circuit Court for the County of Franklin (the “circuit court“) convicting Turner of one count of displaying a noose with the intent to intimidate, in violation of
I. Background
On Wednesday, June 17, 2015, around 5:00 p.m., Traze Witcher (“Witcher“) was returning home from her job as a nurse at Trinity Mission of Rocky Mount. Shortly after she turned on to her street, Lindsey Lane in Rocky Mount, Franklin County, Virginia, she spotted an all-black, life-size dummy hanging by a noose from a tree in the yard (“the noose display“) of the second house, 108 Lindsey Lane.1 Witcher testified that, to her, it appeared as if a black man was being hanged “from a rope from a tree in [Turner‘s] yard.” Only hanging fifteen to thirty feet from the side of the road, the noose display was visible to anyone traveling on Lindsey Lane.
Turner resides and owns the property at 108 Lindsey Lane. He resides next door to John and Keena Mitchell (“John” or “Keena” or collectively “the Mitchells“).2 Keena is Witcher‘s sister; John is Witcher‘s brother-in-law. The Witchers and the Mitchells are the only African-American families residing on Lindsey Lane. The Mitchells live with their two male children in the first house on Lindsey Lane. The Mitchells’ home sits approximately thirty to forty feet from Turner‘s home, and a fence does not separate the properties.
Immediately after seeing the noose display, Witcher turned around and drove directly to the Mitchells’ house. Witcher testified that she was so fearful upon seeing the black dummy hanging from the noose in Turner‘s yard that all she could do after arriving at the Mitchells’ home was blow the car horn until Keena and John came outside. Witcher drove Keena and John to see the noose and black dummy display. Upon seeing the display, John went to the Franklin County
The following day, Captain Paul Caldwell (“Captain Caldwell“) of the Sheriff‘s Department began investigating John‘s report. Captain Caldwell arrived at Turner‘s residence around noon on Thursday, June 18, 2015. Captain Caldwell asked Turner about the object hanging from the tree in Turner‘s yard. Turner stated that it was a “scarecrow.” When Captain Caldwell commented that there was no reason for a scarecrow without a garden, Turner implied it was to scare away people. Turner explained that he was a “raciest” and that he “did like blacks but not niggers.”3 At this point, Captain Caldwell told Turner that the noose display was a “violation” and would be seized after Captain Caldwell spoke with the Commonwealth‘s Attorney. Then, Captain Caldwell and another officer photo-graphed the dummy as it hanged in the noose.4 After taking photographs, the noose display was removed and taken to the Sheriff‘s Department.
Prior to this incident, little contact occurred between Turner and the Witchers and the Mitchells. On one occasion, in December 2013, the Mitchells received a letter from Turner apologizing for the type of person he was and for not giving them a chance to let him find out what kind of neighbors they were. On a separate occasion, Turner called the police on the Mitchells to report them for a “humming noise” that he often complained emitted from the Mitchells’ property. Yet, prior to June 17, 2015, neither John nor Keena Mitchell feared Turner. As for Witcher, in April 2015 she borrowed Keena‘s van only to have Turner flip his middle finger at her as she passed his property. Then, Turner said “[you] people are nothing but ignorant” and called Witcher a “stupid B.”
At trial, John testified that after seeing the noose display he was especially upset because nine African-Americans had been killed in South Carolina earlier the same day at the “Charleston Church Shooting.”5 He specified that the noose display caused him to fear for his family‘s safety. John‘s wife, Keena, testified that upon seeing the noose display she feared for herself and her children. In the days after seeing the noose display, John stated that before he would leave for work in the morning he would check to make sure no one was standing in his yard. Also, each day he questioned whether he was going to return home from work with something thrown at his house or a message spray painted on his home. John attributed his feelings to seeing the noose display on Turner‘s property.
After the incident, the Mitchells no longer allow their sons to walk past Turner‘s house because the Mitchells are uncertain of what Turner is capable of doing. John explained that “if [Turner] can hang a noose I don‘t know what he is going to do.” Although the Mitchells did not directly interact with Turner again after the noose display, Turner continuously hung a confederate flag in a window of his home facing the Mitchells’ house.6
On August 3, 2015, a Franklin County grand jury issued an indictment against Turner that on or about June 17, 2015, Turner “unlawfully and feloniously did display a noose on a public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death of [sic] bodily injury and with the intent of intimidating a person or group of persons.” Turner was arrested for violating
Prior to trial, Turner filed a motion to dismiss arguing that the conduct for which
At trial, Turner pleaded not guilty to the charge against him. The circuit court overruled Turner‘s motion to dismiss and found that he hanged the noose in a public place because it was up in a tree where it was visible from the road. The circuit court further found the noose display was hanged to specifically intimidate others. Thus, the circuit court found Turner guilty of violating
II. Analysis
A. Standard of Review
“Under well-settled principles of appellate review, [this Court] consider[s] the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.” Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). “This principle requires this Court to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.‘” Beck v. Commonwealth, 66 Va.App. 259, 262, 784 S.E.2d 310, 311 (2016) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). “It is the prerogative of the trier of fact to ‘resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.‘” Sierra v. Commonwealth, 59 Va.App. 770, 776, 722 S.E.2d 656, 658 (2012) (quoting Brown v. Commonwealth, 56 Va.App. 178, 185, 692 S.E.2d 271, 274 (2010)).
“A factfinder‘s resolution of conflicting facts, as well as competing inferences, receives ‘the highest degree of appellate deference.‘” Coleman v. Commonwealth, 52 Va.App. 19, 23 n.2, 660 S.E.2d 687, 689 n.2 (2008) (quoting Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006)). This Court does “not ask whether we, as appellate judges, believe ‘the evidence at the trial established guilt beyond a reasonable doubt.‘” Thomas, 48 Va.App. at 608, 633 S.E.2d at 231 (quoting Stevens v. Commonwealth, 46 Va.App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc)). Rather, we ask only whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Stevens, 46 Va.App. at 249, 616 S.E.2d at 761. Furthermore, “[t]he judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict, and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Crislip v. Commonwealth, 37 Va.App. 66, 69, 554 S.E.2d 96, 97 (2001) (quoting Beck v. Commonwealth, 2 Va.App. 170, 172, 342 S.E.2d 642, 643 (1986)). Finally, questions of both constitutional interpretation and statutory construction are reviewed de novo. Lawlor v. Commonwealth, 285 Va. 187, 240, 738 S.E.2d 847, 877 (2013).
B. Whether Turner‘s actions constitute “True Threats” which are not protected by the First Amendment
“The hallmark of the protection of free speech is to allow ‘free trade in ideas‘—even ideas that the overwhelming majority of people might find distasteful or discomforting.” —Justice Sandra Day O‘Connor, Virginia v. Black, 538 U.S. 343, 358 (2003).
In 2009, the General Assembly enacted
A. Any person who, with the intent of intimidating any person or group of persons,
displays a noose on the private property of another without permission is guilty of a Class 6 felony. B. Any person who, with the intent of intimidating any person or group of persons, displays a noose on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.
(Emphasis added). In his first two assignments of error, Turner argues that his conviction under
It is a foundational right that “[t]he First Amendment, applicable to the States through the Fourteenth Amendment, provides that ‘Congress shall make no law ... abridging the freedom of speech.‘” Black, 538 U.S. at 358 (quoting
The Supreme Court of the United States has “long recognized that the government may regulate certain categories of expression consistent with the Constitution.” Id. True threats are among the certain categories of speech that a state may prohibit without violating the First Amendment. Id. at 359. “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. Even where the speaker does not “actually intend to carry out the threat,” a “prohibition on true threats protects individuals from fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.” Id. at 360. Intimidation in the “constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id.
Black consolidated three cases involving convictions based on
Ultimately, the Supreme Court concluded that a state may “choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Id. at 363 (emphasis added).
Turner quotes Black v. Commonwealth—which the Supreme Court of the United States reversed in Virginia v. Black—for the general proposition that people have the right to “use symbols to communicate,” and thus they may “reverently worship the cross or burn it as an expression of bigotry.” 262 Va. at 778-79, 553 S.E.2d at 746. However, in Virginia v. Black, the Supreme Court held that the “fact that cross burning is symbolic expression ... does not resolve the constitutional question.” 538 U.S. at 361. Here, the fact Turner hanged a dummy in a noose in his front yard as a form of “symbolic expression ... does not resolve the constitutional question” either. Id. Rather, we look to whether the public display of a noose evokes a “long and pernicious history as a signal of impending violence.” Id. at 363, 123 S.Ct. at 1549.
“During this country‘s ‘lynching era‘—the five decades between the end of Reconstruction and the beginning of the Great Depression, between 1880 and 1930—at least 2,462 African American men, women, and children died at the hands of southern mobs.” Lu-in Wang, The Complexities of “Hate”, 60 Ohio St. L.J. 799, 833 (1999). “The mob inflicted death, death that was the result of extraordinary, sadistic cruelty.” Id. at 834. “Almost all of their killers were white.” Id. at 833. We know from historical accounts that victims were often tortured before being executed, sometimes “by being slowly roasted over a fire,” other times “by having limbs or sexual organs amputated.” Id. at 834. After an execution, members of the mob might distribute “pieces of the charred remains ... as souvenirs to the mob whose members desired a keepsake as a remembrance of the notable happening.” Id. “In short, the phenomenon of lynching exhibited American society in its most ferocious and inhuman manifestation.” Id.
“[L]ynching had a powerful terroristic effect on the target population.” Id. at 835. “The use of violence was aimed not just at the individual victim but at the black community generally, and the gruesome details of each event were publicized widely through the press and word of mouth.” Id. at 835-36. “As a result, southern blacks lived with the knowledge that any one of them could be a victim at any time.” Id. at 836. Therefore, we conclude that the public display of a noose evokes a “long and pernicious history as a signal of impending violence.” Black, 538 U.S. at 363. As a result of lynching‘s history as a clear signal of impending violence, we hold that the Commonwealth may choose to regulate this subset of intimidating messages through the display of a noose in the same manner and for the same reason it may regulate the message conveyed by the burning of a cross. Id. at 360.
Virginia‘s statute prohibiting the display of a noose,
“Intimidation” rises to the level of a “true threat” in cases where, as here, the person communicating the threat “directs [the] threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. Thus, pursuant to Black, we hold that displaying a noose in the manner
With regard to Turner‘s second assignment of error in which he argues that he had an absolute right under the First Amendment to use symbolic or offensive conduct however reprehensible or offensive and with the intent to intimidate if he did so upon his own property, we conclude that he has procedurally defaulted that issue. Pursuant to Rule 5A:20(e), an appellant‘s opening brief must contain “[t]he principles of law, the argument, and the authorities relating to each question presented.” “Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration. We will not ... correct deficiencies in a brief.” Buchanan v. Buchanan, 14 Va.App. 53, 56, 415 S.E.2d 237, 239 (1992). Turner failed to cite any authority whatsoever in support of his argument that the First Amendment offers blanket protection for threats made on his private property, thus he failed to comply with the provisions of Rule 5A:20(e), and we will not consider his arguments on appeal. Moreover, in concluding that the First Amendment does not offer the sort of blanket protection that Turner seeks, Justice Holmes famously observed in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919), that falsely shouting “fire” in a crowded theater is not protected speech under the First Amendment and we can think of no principled constitutional reason why that should change if you happen to own the theater and Turner has offered none.
C. Public Place: Code § 18.2-423.2
The meaning of the words “public place,” in the context of
“The primary objective of statutory construction is to ascertain and give effect to legislative intent. The plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). A common dictionary definition of the word “public” is “a place accessible or visible to all members of the community.” Webster‘s Third New International Dictionary 1836 (3d ed. 1993) (emphasis added). The same dictionary defines the word “place” as “physical environment” or “physical surroundings.” Id. at 1727. Black‘s Law Dictionary defines “public place” as “[a]ny location that the local, state, or national government maintains for the use of the public, such as a highway, park, or public building.” Public Place, Black‘s Law Dictionary (10th ed. 2014). These definitions alone do not provide much guidance.
Yet, while the definition of “public place” may be a case of first impression under the current Code, the Supreme Court of Virginia previously defined the term in Hackney v. Commonwealth, 186 Va. 888, 45 S.E.2d 241 (1947), in the context of the Code of Virginia then in effect. In Hackney, the Supreme Court decided “whether loud, boisterous, vile and abusive language uttered by a man standing on his porch to a person passing along the highway within thirty feet of the speaker constitutes disorderly conduct within the meaning of chapter 296 of the Acts of 1946.” Id. at 889-90. The Court held that it did. In doing so, the Supreme Court provided us a framework of how to define “on a highway or other public place” because it had to determine the meaning of the phrase within the Code section at the time, “[i]f any person behaves in a riotous or disorderly manner in any street, highway, public building, or any other public place ..., he shall be guilty of a misdemeanor.” Id. at 890 (emphasis added).
As we have done here, the Hackney Court began its analysis with the commonly understood definition:
Webster‘s International Dictionary, 2d Ed., defines “place” as “a portion of space occupied by a body;” “any particular spot or locality.” The same authority defines “public” as “open to the knowledge or view of all; generally seen, known, or heard; without privacy, concealment, etc.” “A place so near and so open that persons traveling the highway can see card or dice playing thereat is abstractly and per se a public place.” 6 Words and Phrases, p. 5807. Bouvier‘s Law Dictionary defines “public place” as “Any place so situated that what passes there can be seen by any considerable number of persons, if they happen to look.”
Id. at 891-92. Then, the Court reasoned that
[t]he use of offensive language on one‘s own premises does not constitute a violation of ... Penal Law unless that person communicates it to the public; for example, shouts offensive language from a window on a public street and thus annoys and disturbs some person or persons who are within hearing of the voice.
Id. at 893 (emphasis added). Extrapolating from the language in Hackney, we hold that the use of offensive language by use of a symbol on one‘s own premises constitutes
In the case at bar, we conclude that the General Assembly‘s purpose in enacting the noose statute is to prohibit people from displaying nooses to communicate “true threats” as defined in Black. A “prohibition on true threats protects individuals from fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.” Black, 538 U.S. at 360. We conclude that using the definition for “public place” endorsed in Hackney to define the phrase in Virginia‘s noose statute furthers the General Assembly‘s purpose in prohibiting the display of nooses where such display is accompanied by the intent to intimidate and conducted in a manner having a direct tendency to place people in reasonable fear of death or bodily injury. Thus, we adopt the definition for the term “public place” that gives effect to this legislative intent as announced in Hackney.
It is without doubt that the location of the noose and dummy in Turner‘s front yard—where it was “clearly visible” from the street—qualifies as a “public place” under the definition in Hackney. The facts, taken in the light most favorable to the Commonwealth, demonstrate that Turner admitted to Captain Caldwell that the noose and dummy were utilized as a “scarecrow” meant to “scare people away.” Witcher and the Mitchells testified that the noose and dummy were “very visible” and “clearly visible” to them from the street, and were hanging in “plain sight” where you “couldn‘t miss it if you tried.” Moreover, when Witcher and the Mitchells saw the noose display, they feared for their safety and for the safety of their families.
III. Conclusion
As Justice Robert Jackson reminded us, “the very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.” Williamson v. United States, 184 F.2d 280, 283 (2d Cir. 1950). A constitutional limit to that allowance has been reached when an idea becomes a threat that causes reasonable people to fear leaving their homes.
For all of these reasons, we conclude that
Affirmed.