Elliott v. Com.

• Decision Date: 05 March 2004
• Docket Number: Record No. 010038.,Record No. 003014
• Citation: 593 S.E.2d 263,267 Va. 464
• Parties: Richard J. ELLIOTT, v. COMMONWEALTH of Virginia. Jonathan O'Mara, v. Commonwealth of Virginia.
• Court: Virginia Supreme Court

593 S.E.2d 263

267 Va. 464

Richard J. ELLIOTT, v. COMMONWEALTH of Virginia.

Jonathan O'Mara, v. Commonwealth of Virginia.

Record Nos. 003014, 010038.

Supreme Court of Virginia.

March 5, 2004.

James O. Broccoletti (Zoby & Broccoletti, on briefs), Norfolk, for appellant.

William H. Hurd, State Solicitor (Jerry W. Kilgore, Attorney General; Maureen Riley Matsen, Deputy State Solicitor; William E. Thro, Deputy State Solicitor, on brief), for appellee.

Kevin E. Martingayle (Stallings & Richardson, on briefs), for appellant.

William H. Hurd, State Solicitor (Jerry W. Kilgore, Attorney General; Maureen Riley Matsen, Deputy State Solicitor; William E. Thro, Deputy State Solicitor, on brief), for appellee.

Present: HASSELL, C.J., LACY, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and COMPTON, S.J.

LEMONS, Justice.

On remand from the Supreme Court of the United States, we consider the proper construction of the prima facie evidence provision of Code § 18.2-423 and the severability of the provision from the core provisions of the statute. Additionally, we consider whether the convictions of the defendants should be vacated and dismissed, vacated with the opportunity for the Commonwealth to retry the defendants, or whether the convictions should be affirmed.

I. Facts and Proceedings Below

On the night of May 2, 1998, Richard J. Elliott, ("Elliott") and Jonathan S. O'Mara ("O'Mara") erected a cross in the yard of James S. Jubliee, Elliott's next-door neighbor, and attempted to ignite it. According to the record, Elliott conceived of the cross burning as revenge against Jubliee because Jubliee had complained to Elliott's mother about gunfire in Elliott's backyard. Elliott convinced two friends, O'Mara and David Targee, to aid him in the burning.

The Commonwealth prosecuted Elliott and O'Mara for attempted cross burning and conspiracy to commit cross burning under Code §§ 18.2-423, 18.2-16, and 18.2-22. O'Mara pled guilty to attempted cross burning and conspiracy to commit cross burning but conditioned his plea upon the reservation of his right to challenge the constitutionality of Code § 18.2-423 on appeal. Elliott chose to be tried by a jury. The trial court instructed the jury that in order to find Elliott guilty of attempted cross burning, "The Commonwealth must prove beyond a reasonable doubt What the defendant had the intent of intimidating any person or group of persons." No instruction based upon the prima facie evidence provision of Code § 18.2-423 was given. A jury found Elliott guilty of attempted cross burning but acquitted him of conspiracy to commit cross burning.

In Black v. Commonwealth, 262 Va. 764, 553 S.E.2d 738 (2001), an appeal consolidating the Elliott and O'Mara cases with a third case involving Barry E. Black ("Black"), who was charged under § 18.2-423 for burning a cross at a Ku Klux Klan rally, we held that § 18.2-423 was facially invalid as selective regulation of speech based upon content. Our ruling was premised upon the language of the statute and our interpretation of the United States Supreme Court's ruling in R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). We held that the statute was underinclusive, because it singled out "a particular form of intimidating symbolic speech" for punishment while leaving other forms unregulated. Black v. Commonwealth, 262 Va. at 773-76, 553 S.E.2d at 743-45. Additionally, we held that the language of the prima facie evidence provision of the statute was overbroad because of its chilling effect upon the exercise of free speech under the First Amendment. Id. at 777-78, 553 S.E.2d at 746. The Commonwealth appealed our decision to the United States Supreme Court. In a plurality opinion authored by Justice O'Connor, the Supreme Court held that the Commonwealth may engage in content discrimination "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable." Virginia v. Black, 538 U.S. 343, 361, 123 S.Ct. 1536, 1549, 155 L.Ed.2d 535 (2003). Thus, the Commonwealth may prohibit cross burning with intent to intimidate, even though it fails to prohibit the burning of other objects, because cross burning is significantly more likely to intimidate. Id.

Although it concluded that the core provisions of Code § 18.2-423 were constitutional, the Supreme Court held that the prima facie evidence provision of the statute was unconstitutional because it "strips away the very reason why a State may ban cross burning" —the intent to intimidate. Id. at 365, 123 S.Ct. at 1550. Using the language of the jury instruction given in the case involving Black as the interpretation of the prima facie evidence provision, the Supreme Court held that the provision "as interpreted by the model jury instruction" was unconstitutionally overbroad. Id. at 365, 123 S.Ct. at 1551.

The Supreme Court vacated the judgment in Black v. Commonwealth, dismissed the case against Black, and remanded the Elliott and O'Mara cases to this Court to determine whether the jury instruction given in Black's trial was the proper interpretation of the prima facie evidence provision, whether the prima facie evidence provision could be severed from the statute if a constitutional interpretation could not be found, and the proper disposition of the cases against Elliott and O'Mara. Virginia v. Black, 538 U.S. at 365 368, 123 S.Ct. at 1551-52.

II. Analysis

A. Constitutionality of the Prima Facie Evidence Provision

Code § 18.2-423, in effect at the time defendants committed the offenses, provided:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn or cause to be burned, a cross on the property of another, a highway or other public place .

Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.

A violation of this section is punishable as a Class 6 felony.

In Black v. Commonwealth, we held that the prima facie evidence provision "sweeps within its ambit for arrest and prosecution, both protected and unprotected speech." 262 Va. at 778, 553 S.E.2d at 746. We based our holding directly on the language of the statute, not the language of the jury instruction used at Black's trial, because the statute itself was the common thread among the three procedurally and factually distinct cases.

Although the Commonwealth suggests an alternate interpretation for the prima facie evidence provision,¹ we hold that the instruction given at Black's trial properly interprets the prima facie evidence provision of Code § 18.2-423. The instruction provided: "The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." Of course, no one jury instruction contains all of the applicable law in a given case. The law applicable to the case is contained in multiple instructions which, taken collectively, give proper guidance to the jury. See Van Duyn v. Matthews, 181 Va. 256, 261, 24 S.E.2d 442, 444 (1943); Adamson v. Norfolk & Portsmouth Traction Co., 111 Va. 556, 561, 69 S.E. 1055, 1058 (1911).

The subject instruction must be read in context with the general instructions given in virtually every criminal jury trial in Virginia concerning reasonable doubt, presumption of innocence, and the credibility of witnesses. These additional instructions reflect general principles of criminal law and procedure including that the defendant is not required to produce any evidence, that the Commonwealth bears the burden of proof beyond a reasonable doubt on every element of the offense, that the jury must give impartial consideration to all the evidence presented, and that the jury must weigh the credibility of witnesses but may not arbitrarily disregard believable testimony. Taken in context of the other instructions, the subject instruction concerning the prima facie evidence provision of Code § 18.2-423 properly interprets the provision, but it does not save the provision from unconstitutionality.

In Black v. Commonwealth, 262 Va. at 777-78, 553 S.E.2d at 745-46, we held that the statutory provision concerning prima facie evidence of intent to intimidate affects both protected and unprotected speech, and consequently, is overbroad. The plurality in Virginia v. Black agreed:

The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts, of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.

It is apparent that the provision as so interpreted "`would create an unacceptable risk of the suppression of ideas.'" The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that a State will prosecute — and potentially convict — somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.

538 U.S. at 363-367, 123 S.Ct. at 1550-51 (citations omitted). The plurality opinion in Virginia v. Black properly noted that we "had the opportunity to expressly disavow the jury instruction." 538 U.S. at 364, 123 S.Ct. at 1550. We did not disavow it then and we do not accept the invitation to do so now. Accordingly, we affirm our prior holding that the prima facie evidence...