Hicks v. Com.

• Decision Date: 17 October 2000
• Docket Number: Record No. 1895-99-2.
• Citation: 33 Va. App. 561,535 S.E.2d 678
• Parties: Kevin Lamont HICKS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

535 S.E.2d 678

33 Va. App. 561

Kevin Lamont HICKS v. COMMONWEALTH of Virginia.

Record No. 1895-99-2.

Court of Appeals of Virginia, Chesapeake.

October 17, 2000.

Steven D. Benjamin, (Betty Layne Des-Portes; Benjamin & DesPortes, P.C., on briefs), Richmond, for appellant.

Virginia B. Theisen, Assistant Attorney General, (Mark L. Earley, Attorney General, on brief), for appellee.

Present: COLEMAN and HUMPHREYS, JJ., and OVERTON, Senior Judge.

HUMPHREYS, Judge.

Kevin Lamont Hicks appeals his conviction in a trial de novo appeal to the circuit court (trial court) for trespass. Hicks complains that 1) the trial court erred in denying his motion to remand the case to the general district court with instructions for the matter to be tried before a different judge of that court and for the Commonwealth's Attorney to prosecute the case in that forum; 2) the trial court erred in denying his motion to dismiss the prosecution on the grounds that his due process and First Amendment rights were violated; and 3) the trespassing statute is unconstitutionally vague and overbroad. We disagree and for the reasons that follow, affirm his conviction.

I. Background

Previous to January 20, 1999, Hicks had been convicted of trespassing on the property of Whitcomb Court on February 10, 1998, and June 26, 1998, respectively, and of damaging property there on April 27, 1998.

Whitcomb Court is a housing project owned by the Richmond Redevelopment and Housing Authority ("Authority"). The City of Richmond, by ordinance, deeded certain city streets including the 2300 block of Bethel Street, to the Authority for the express purpose of privatizing and closing them to traffic by non-residents. "No Trespassing" signs were placed at intervals on the privatized streets. The Authority authorized the Richmond Police Department to enforce the trespass statute on its property, including Whitcomb Court. On April 14, 1998, Mrs. Gloria Rogers, housing manager at Whitcomb Court, personally served a written notice on Hicks advising him that he was banned from the Whitcomb Court property. This notice specifically advised Hicks that if he were "seen or caught on the premises, [he would] be subject to arrest by police." Hicks acknowledged receipt by signing a copy of the notice. On two occasions after receiving the notice, Hicks went to Mrs. Rogers and sought permission to come back on the property. He told Mrs. Rogers that his mother lived there. His barment from the property was not lifted.

On January 20, 1999, Officer James Laino observed Hicks walking in the 2300 block of Bethel Street. Officer Laino had personal knowledge that Hicks was barred from the property and had arrested him previously for trespassing. Hicks told Laino that he was there "to bring pampers for his baby." Laino issued Hicks a summons for trespassing.

Hicks was tried in general district court on the trespassing summons on April 21, 1999. Hicks was represented by counsel. No prosecutor was present on behalf of the Commonwealth.

Officer Laino testified and responded to questions by the court and was cross-examined by counsel for Hicks.¹ Hicks then testified on his own behalf. Following direct examination, the court propounded several questions to which counsel for Hicks objected. Counsel for Hicks moved to strike Hicks'"testimony in totality." The court granted this motion. The defendant was convicted in general district court and noted his appeal to the circuit court. Prior to trial in the circuit court, Hicks filed a motion asking the circuit court to remand the case for a new trial in the general district court before a different judge and with direction to the Commonwealth's Attorney that his office represent the Commonwealth in the new trial. At the hearing on his motion, Hicks asked that, in the alternative to granting his motion to remand, the case be dismissed. The circuit court denied the motion on the grounds that it lacked any authority to grant it.

Also prior to trial, Hicks moved to dismiss the charge on the ground that the Authority's trespass policy violates the federal and state constitutions. At a hearing on this motion, Mrs. Rogers testified as to the trespass policy at Whitcomb Court. Through Rogers, a flyer was introduced into evidence which the Authority gave to residents and which described the privatization of the streets in the housing complex. This flyer stated and Rogers confirmed in her testimony that non-residents who have not been barred from the property and who can demonstrate that they have been invited by a resident are not affected by the trespassing policy. Rogers also testified that the open-air drug market in the area was the reason for much of the policy toward trespassers and that it is usually a member of the police department who gives the notice and warning. Mrs. Rogers testified that criminal acts on the premises, including those involving drugs or domestic violence, were grounds for barment. She further testified that the police were authorized to warn non-residents to leave the property if they could not demonstrate that they were invited by a resident and to bar them from returning. Additionally, Mrs. Rogers indicated there was a process for having a barment lifted by submitting a written request through the Authority's director of housing operations. She also testified that any organization that seeks to use a privatized street must get permission first and requests to hold functions or pass out materials on the privatized streets are referred to a "community council." She testified that she had not denied permission to anyone who had sought to pass out flyers on the complex property.

The motion to dismiss on constitutional grounds was denied, and Hicks was subsequently tried de novo in a bench trial and convicted of trespassing.

II. Motion for Remand

Hicks first argues that he was entitled to have his case remanded to the general district court for a new trial before another judge because the judge of that court who presidedat over the initial trial improperly assumed the role of a prosecutor by "cross-examining" him.

The Supreme Court of Virginia has long held that there is no inherent damage to a fair trial when a judge asks questions of a witness.

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

Mazer v. Commonwealth, 142 Va. 649, 655, 128 S.E. 514, 516 (1925) (citations omitted).

In addition, we have held that "the trial court, in the exercise of its sound discretion, may permit jurors to submit written questions to be asked of a witness." Williams v. Commonwealth, 24 Va.App. 577, 582, 484 S.E.2d 153, 155 (1997). We also noted in Williams that "[t]he function of a jury is to assure a fair and equitable resolution of all factual issues. The jury serves as the final arbiter of the facts, `charged with weighing the evidence, judging the credibility of the witnesses, and reaching a verdict' in the case." Id. at 582, 484 S.E.2d at 155. This function belongs no less to the court when serving as the fact finder. We need not determine here whether the general district court judge's questions demonstrated an inappropriate bias or prejudice because the court granted Hicks' motion to strike the questions as well as his answers.

In addition, the remedy provided to any defendant in a criminal case who perceives error on the part of a trial court is to exercise the right to appeal the matter to a higher tribunal. In the context of misdemeanors tried in the district courts, the General Assembly has established a right to a trial de novo in the circuit court.² A de novo hearing means a trial anew. On appeal, a conviction in the district court is annulled, and a new trial is held in the circuit court. See Ledbetter v. Commonwealth, 18 Va.App. 805, 447 S.E.2d 250 (1994)

.

While it would clearly be preferable for the Commonwealth to be represented by counsel in every case in which it is a party, the General Assembly has declined to mandate such representation. Code § 15.2-1627(B) recites the duties of Commonwealth's Attorneys and their assistants.³ This statute only requires Commonwealth's Attorneys to prosecute felonies and provides that a prosecutor "may in his discretion, prosecute Class 1, 2 and 3 misdemeanors." Clearly, the General Assembly decided as a matter of policy to place the discretion for the representation of the Commonwealth in misdemeanor cases in the hands of the executive branch rather than the judicial branch of government.

Hicks relies on the decision of the Supreme Court of the United States in Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.E d.2d 267 (1972), as authority for his argument that a trial de novo does not cure errors committed in a lower court. We find his reliance on Ward is misplaced. In Ward, the Supreme Court addressed a systemic problem of bias inherent in the infrastructure of local mayors' courts. There, mayors of villages sat as judges in the courts, and a major portion of village income was derived from the collection of these fines. In finding that such a scheme violates the due process rights of criminal defendants in the mayors' courts, Justice Brennan noted that the constitutional infirmity was grounded in the separation of powers doctrine.

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