Com. v. Hicks

• Citation: 563 S.E.2d 674,264 Va. 48
• Decision Date: 07 June 2002
• Docket Number: Record No. 011728.
• Parties: COMMONWEALTH of Virginia v. Kevin Lamont HICKS.
• Court: Supreme Court of Virginia

563 S.E.2d 674

264 Va. 48

COMMONWEALTH of Virginia v. Kevin Lamont HICKS.

Record No. 011728.

Supreme Court of Virginia.

June 7, 2002.

Virginia B. Theisen, Assistant Attorney General (Randolph A. Beales/Jerry W. Kilgore, Attorney General, on briefs), for appellant.

Steven D. Benjamin, Richmond (Betty Layne DesPortes; Benjamin & DesPortes, on brief), for appellee.

Amici Curiae: City of Richmond and Richmond Redevelopment and Housing Authority (John A. Rupp, City Attorney; Norman B. Sales, Senior Assistant City Attorney; William G. Broaddus; Jonathan T. Blank; William H. Baxter, II; Godfrey T. Pinn, Jr., Richmond; McGuireWoods, on brief), in support of appellant; American Civil Liberties Union of Virginia, Inc. (Rebecca K. Glenberg, on brief), in support of appellee.

Present: All the Justices.

HASSELL, Justice.

The narrow issue that we consider in this appeal is whether a redevelopment and housing authority's trespass policy is overly broad and thereby violates, the First and Fourteenth Amendments to the Constitution of the United States.

I.

Kevin Lamont Hicks was charged with trespass in violation of Code § 18.2-119 and three violations of the conditions of suspended sentences imposed upon him for prior trespass convictions. He was tried and convicted in the City of Richmond General District Court.

Hicks appealed the convictions to the Circuit Court of the City of Richmond, and he filed a motion to dismiss the charges against him on the basis that a redevelopment and housing authority's trespass policy contravened the First and Fourteenth Amendments to the Constitution of the United States. The circuit court denied the motion. At the conclusion of a bench trial, Hicks was convicted of trespass and sentenced to 12 months in jail, which was suspended. The circuit court also revoked Hicks' prior suspended sentences.

Hicks appealed the judgment to the Court of Appeals. A panel of the Court of Appeals affirmed the judgment, Hicks v. Commonwealth, 33 Va.App. 561, 535 S.E.2d 678 (2000), but the Court of Appeals en banc disagreed with the panel and vacated Hicks' conviction because the redevelopment and housing authority's trespass policy contravened the First and Fourteenth Amendments to the Constitution of the United States. Hicks v. Commonwealth, 36 Va.App. 49, 52, 548 S.E.2d 249, 251 (2001). The Commonwealth appeals.

II.

The Richmond Redevelopment and Housing Authority (Housing Authority) is a political subdivision of the Commonwealth of Virginia. The Housing Authority owns and operates a housing development in the City of Richmond for low income residents known as Whitcomb Court. The City of Richmond owned the streets located within Whitcomb Court.

In an effort to eradicate illegal drug activity in Whitcomb Court, which was described as an "open-air drug market," the Housing Authority sought to deny access to its property to persons who did not have legitimate reasons to visit the housing development. The majority of persons who had been arrested for drug crimes at the Whitcomb Court housing development were individuals who did not reside there.

The Richmond City Council enacted an ordinance that "closed to public use and travel and abandoned as streets of the City of Richmond," streets in Whitcomb Court because those streets were "no longer needed for the public convenience." The City conveyed the streets by a recorded deed to the Housing Authority,

The deed required that the Housing Authority "make provisions to give the appearance that the closed streets, particularly at the entrances, are no longer public streets and that they are in fact private streets." The Housing Authority's employees affixed red and white signs to each apartment building in Whitcomb Court. The signs are also located "every 100 feet" along the streets in Whitcomb Court and are "approximately 18 inches to almost 24 inches by about 12 inches" in size. The signs state:

"NO TRESPASSING

"PRIVATE PROPERTY

"YOU ARE NOW ENTERING PRIVATE PROPERTY AND STREETS OWNED BY RRHA.

"UNAUTHORIZED PERSONS WILL BE SUBJECT TO ARREST AND PROECUTION.

"UNAUTHORIZED VEHICLES WILL BE TOWED AT OWNERS EXPENSE."

The Housing Authority, in its capacity as

owner of the private streets, authorized

"each and every Richmond Police Department officer to serve notice, either orally or in writing, to any person who is found on Richmond Redevelopment and Housing Authority property when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises. Such notice shall forbid the person from returning to the property. Finally, Richmond Redevelopment and Housing Authority authorizes Richmond Police Department officers to arrest any person for trespassing after such person, having been duly notified, either stays upon or returns to Richmond Redevelopment and Housing Authority property."

As a part of the Housing Authority's unwritten policies, Gloria S. Rogers, the Housing Authority's housing manager for Whitcomb Court, was required to determine whether a person can demonstrate a legitimate business or social purpose to use the Housing Authority's property. Pursuant to these policies, individuals who sought access to the Housing Authority's property, including the streets, needed to obtain Rogers' permission for such access. Rogers stated that if a person desired to disseminate materials or participate in an activity on the property, that person must obtain her authorization. Sometimes, she referred such request to a "community council" which met with "the Board and the residents." She also testified that if an individual submitted a request to distribute flyers and the request was not "routine," she referred that request to the Housing Authority's director of housing operations for resolution. The Housing Authority, however, has not promulgated any written policies or procedures that govern decisions regarding who may distribute materials or participate in activities on the Housing Authority's property.

Pursuant to the Housing Authority's unwritten policies, an individual who is not authorized to use the Housing Authority's property and does so is warned by the Richmond Police Department. The Housing Authority forwards a letter to that individual informing him that he may not lawfully return to the property.

On January 20, 1999, Richmond police officer James J. Laino, who was driving a police car on Bethel Street, observed Hicks, who was walking on a sidewalk on that street. Bethel Street is one of the streets that the City conveyed to the Housing Authority and that street is located entirely within Whitcomb Court.

Laino, who had known Hicks for about four years, approached him. Laino knew that Hicks had been notified that he was barred from the Housing Authority's property. Laino informed Hicks that he was "not supposed to be out here," and Laino issued a summons to Hicks for trespass.

Rogers had also spoken with Hicks on two prior occasions and told him that he could not appear on the Housing Authority's property. Hicks had been arrested on two prior occasions for trespass on the Housing Authority's property. On April 14, 1998, Hicks signed a letter that was hand delivered to him by Rogers. The letter, which the parties describe as a barment notice, states in part:

"This letter serves to inform you that effective immediately you are not welcome on Richmond Redevelopment and Housing Authority's Whitcomb Court or any Richmond Redevelopment and Housing Authority property. This letter is an official notice informing you that you are not to trespass on RRHA property. If you are seen or caught on the premises, you will be subject to arrest by the police."

III.

A.

The Commonwealth argues that Hicks is not entitled to challenge the constitutional validity of the Housing Authority's practices or policies in the criminal prosecution for trespass. The Commonwealth contends that Hicks instead was required to challenge the barment notice he received from the Housing Authority or the Housing Authority's policies and practices, presumably in a separate proceeding. We disagree.

In this case, Hicks has asserted a constitutional challenge to a conviction. Hicks pled in a written pretrial motion that the Housing Authority's trespass procedures and policy violated the First Amendment. At trial, Hicks argued that the Housing Authority's trespass procedures and policy were unconstitutional.

Contrary to the Commonwealth's assertions, Hicks was not required to file a civil proceeding to challenge the Housing Authority's trespass policies and practices. Rather, this defendant was entitled to challenge the validity of his conviction on the basis that the Housing Authority's practices and procedures contravened his constitutional rights. We observe that in other contexts, we have permitted defendants to assert constitutional challenges to convictions in criminal prosecutions, see, e.g., Remington v. Commonwealth, 262 Va. 333, 344-45, 551 S.E.2d 620, 628 (2001)

; McCain v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 544-45 (2001); Lenz v. Commonwealth, 261 Va. 451, 460-62, 544 S.E.2d 299, 304-05 (2001); Burns v. Commonwealth, 261 Va. 307, 321-23, 541 S.E.2d 872, 882-83 (2001); Pitt v. Commonwealth, 260 Va. 692, 695-96, 539 S.E.2d 77, 78-79 (2000). We also note that the Supreme Court has permitted criminal defendants to assert constitutional challenges to various ordinances in criminal prosecutions. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

B.

Hicks argued in the Court of Appeals, and he argues here, that the Housing Authority's trespass procedures are overly broad and, therefore, violate fundamental constitutional rights to freedom of speech guaranteed by the First Amendment to the Constitution of the United States. Responding, the Commonwealth contends that the Housing Authority's trespass policy is not overly broad. The Commonwealth also...